In Court Clerks' Breach, a Provocative Precedent

Alex Kozinski is a right-of-center federal appeals judge in California who clerked at the Supreme Court and often recommends his former law clerks to current justices. He says any leaks would be "despicable," a threat to the candor without which judges cannot bat around ideas before making up their minds.

"If the justices are going to be afraid that anything they send to another chambers will wind up in the newspapers, you'll have much less give and take," he says.

Theodore Olson, attorney for George W. Bush, before the Supreme Court in December 2000.
(William Hennessy -- AP)

____The Supreme Court ____

__The 2003-04 Term__

Major Decisions: Summaries, rulings and how each justice voted on the major cases before the Supreme Court.

Free E-mail Newsletters

Even some former clerks who disagreed with Bush v. Gore are uneasy. The open letter in Legal Times was signed by Max Stier, a former clerk to Souter, a liberal who is known as the court's most insistently discreet member. Feldman says he does not want to be "judgmental," but adds: "I wouldn't have done this."

The debate over "How could they?" has led inexorably to "Who were they?" Republican senators John Cornyn, Saxby Chambliss and Lindsey Graham have asked Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) for hearings "to determine whether there has been misconduct."

Since only 35 law clerks served during the 2000-2001 term, and 22 of them denied to The Post that they had talked to Vanity Fair, the list of potential leakers is hardly infinite. Margolick himself has publicly narrowed the field, telling Legal Times that he spoke with "about one-fourth" of the group.

Most of the criticism in the Vanity Fair piece is aimed at Justices Antonin Scalia, Sandra Day O'Connor and Anthony M. Kennedy, all of whom voted in favor of Bush. Scalia is depicted bullying Justice Ruth Bader Ginsburg into watering down her dissenting opinion. O'Connor is described as emotionally fixated on stopping a recount and Kennedy as overly influenced by his right-wing clerks.

Most of the specific action takes place around the chambers of two liberal justices, John Paul Stevens and Stephen G. Breyer.

In one scene, two Stevens clerks, Eduardo Penalver and Andrew Siegel, clash with Kevin Martin, a clerk for Scalia who had come to talk about the case with a third Stevens clerk, Anne Voigts. Martin storms off, a four-letter word on his lips.

Penalver, a graduate of Yale Law School who now teaches law at Fordham University, figures prominently in another scene, angrily telling Grant Dixton, a Kennedy clerk who did not speak with Vanity Fair, that those in Kennedy's chambers had behaved in a "disgusting and unprofessional" manner. Penalver, Siegel and Voigts would neither confirm nor deny speaking with the magazine.

Elsewhere in the article, unnamed clerks in the Breyer chambers watch incredulously as Kennedy comes to lobby Breyer for his vote. "We just kind of looked at him like he was crazy -- 'We don't know what you're smoking but leave us alone' -- and he went away," a clerk recalls.

On the conservative side, two of Scalia's four clerks, Martin and Eric B. Woolf, spoke to Margolick -- largely in response to his requests to confirm stories he had already heard.

Martin, for example, says that he confirmed the clash with Penalver and Siegel to Margolick, though he says he couldn't recall cursing.

"He had a lot of information before he called me," Martin says.

Martin says he did not consider this a violation of confidentiality because he did not reveal anything related to his dealings with Scalia or other justices. He adds that he urged Margolick, fruitlessly as it turned out, to critique the pro-Gore Florida Supreme Court ruling the Supreme Court overturned.

For his part, Woolf is the source of the article's lone comment in defense of Bush v. Gore: "When everybody's dead and they read it all, it won't be embarrassing."

As the Vanity Fair article's authors concede, the clerks present no document or other smoking gun proving that the conservative justices deliberately decided the case to suit their partisan preferences -- a charge that members of the court on both sides have denied publicly.

While calling their account "by far the best" inside look yet, the article acknowledges that it is necessarily "lopsided, partisan, speculative and incomplete."

For some, this raises a question of whether the leakers took a large risk of antagonizing other clerks and the justices in return for a relatively modest impact on history.

"I certainly didn't learn anything from the article," says Pamela Karlan, an election-law specialist at Stanford University who clerked for Blackmun. "It's not as if there is some shocking revelation -- which is why I don't see why the clerks did it."

But Margolick disagrees: "I think they did a public service by talking to me, and the story is a public service. We shouldn't have to wait three decades to know what happened in this case."